By:  West                                             S.B. No. 1539

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to the regulation of certain facilities, homes, and

 1-2     agencies that provide child care and of child-care administrators;

 1-3     providing penalties.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  The heading of Chapter 42, Human Resources Code,

 1-6     is amended to read as follows:

 1-7         CHAPTER 42.  REGULATION OF CERTAIN [CHILD-CARE] FACILITIES,

 1-8            HOMES, AND AGENCIES THAT PROVIDE CHILD-CARE SERVICES

 1-9           SECTION 2.  Section 42.001, Human Resources Code, is amended

1-10     to read as follows:

1-11           Sec. 42.001.  PURPOSE.  The purpose of this chapter is to

1-12     protect the health, safety, and well-being of the children of the

1-13     state who receive care outside their homes [reside in child-care

1-14     facilities] by establishing statewide minimum standards for their

1-15     safety and protection and by regulating the provision of certain

1-16     child-care services [facilities through a licensing program].  It

1-17     is the policy of the state to ensure the protection of all children

1-18     receiving child-care services [under care in child-care facilities]

1-19     and to encourage and assist in the improvement of child-care

1-20     programs.  It is also the intent of the legislature that freedom of

1-21     religion of all citizens is inviolate, and nothing in this chapter

1-22     gives a governmental agency authority to regulate, control,

1-23     supervise, or in any way be involved in the form, manner, or

1-24     content of religious instruction or the curriculum of a school

 2-1     sponsored by a religious organization.

 2-2           SECTION 3.  Section 42.002, Human Resources Code, is amended

 2-3     to read as follows:

 2-4           Sec. 42.002.  DEFINITIONS.  In this chapter:

 2-5                 (1)  "Child" means a person under 18 years of age.

 2-6                 (2)  "Division" means the division designated by the

 2-7     department to carry out the provisions of this chapter.

 2-8                 (3)  "Child-care facility" means a facility licensed,

 2-9     certified, or registered by the department to provide assessment,

2-10     [that provides] care, training, education, custody, treatment, or

2-11     supervision for a child who is not related by blood, marriage, or

2-12     adoption to the owner or operator of the facility, for all or part

2-13     of the 24-hour day, whether or not the facility is operated for

2-14     profit or charges for the services it offers.

2-15                 (4)  "Child-care institution" means a child-care

2-16     facility that provides care for more than 12 children for 24 hours

2-17     a day, including facilities known as children's homes, halfway

2-18     houses, residential treatment centers [camps], emergency shelters,

2-19     and therapeutic camps [training or correctional schools for

2-20     children].

2-21                 (5)  "Foster group home" means a child-care facility

2-22     that provides care for 7 to 12 children for 24 hours a day.

2-23                 (6)  "Foster [family] home" means a child-care facility

2-24     that provides care for not more than six children for 24 hours a

2-25     day.

2-26                 (7)  "Day-care center" means a child-care facility that

2-27     provides care for more than 12 children under 14 years of age for

 3-1     less than 24 hours a day.

 3-2                 (8)  "Group day-care home" means a child-care facility

 3-3     that provides care for 7 to 12 children under 14 years of age for

 3-4     less than 24 hours a day.

 3-5                 (9)  "Family home" means a home that [regularly]

 3-6     provides regular care in the caretaker's own residence for not more

 3-7     than six children under 14 years of age, excluding [the caretaker's

 3-8     own] children who are related to the caretaker, and that provides

 3-9     care after school hours for not more than six additional elementary

3-10     school children, but the total number of children, including

3-11     children who are related to the caretaker [the caretaker's own,]

3-12     does not exceed 12 at any given time.  The term does not include a

3-13     home that provides care exclusively for any number of children who

3-14     are related to the caretaker.

3-15                 (10)  "Agency foster group home" means a facility that

3-16     provides care for seven to 12 children for 24 hours a day, [and] is

3-17     used only by a licensed child-placing agency, and meets department

3-18     standards.

3-19                 (11)  "Agency foster home" means a facility [private

3-20     home] that provides care for not more than six children for 24

3-21     hours a day, [that] is used only by a licensed child-placing

3-22     agency, and [that] meets department [division] standards.

3-23                 (12)  "Child-placing agency" means a person, including

3-24     an organization, other than the natural parents or guardian of a

3-25     child who plans for the placement of or places a child in a

3-26     child-care facility [an institution], agency foster home, agency

3-27     foster group home, or adoptive home.

 4-1                 (13)  "Facilities" includes child-care facilities and

 4-2     child-placing agencies.

 4-3                 (14)  "State of Texas" or "state" does not include

 4-4     political subdivisions of the state.

 4-5                 (15)  "Religious organization" means a church,

 4-6     synagogue, or other religious institution whose purpose is to

 4-7     support and serve the propagation of truly held religious beliefs.

 4-8                 (16)  "Children who are related to the caretaker" means

 4-9     children who are the children, grandchildren, siblings,

4-10     great-grandchildren, nieces, or nephews of the caretaker, whether

4-11     by affinity or consanguinity or as the result of a relationship

4-12     created by court decree.

4-13                 (17)  "Regular care" means care that is provided at

4-14     least four hours a day, three or more days a week, for more than

4-15     nine consecutive weeks.

4-16           SECTION 4.  Subsections (a) and (b), Section 42.021, Human

4-17     Resources Code, are amended to read as follows:

4-18           (a)  The department may [shall] designate a division within

4-19     the department to [regulate and license child-care facilities and

4-20     child-placing agencies.  The division shall enforce the provisions

4-21     of this chapter and the rules and standards adopted by the

4-22     department under this chapter and shall] carry out [other]

4-23     responsibilities the department may delegate or assign under this

4-24     chapter.

4-25           (b)  The executive director of the department shall appoint

4-26     as director of a [the] division designated under Subsection (a) a

4-27     person who meets the qualifications set by the board[:]

 5-1                 [(1)  meets the qualifications required of a child-care

 5-2     administrator by Chapter 43;]

 5-3                 [(2)  holds a graduate degree in social science or law

 5-4     and has five years' administrative experience in a field related to

 5-5     child care; or]

 5-6                 [(3)  has 10 years' experience in a field related to

 5-7     child care, at least 5 of which must be administrative].

 5-8           SECTION 5.  Subsections (d), (e), and (f), Section 42.022,

 5-9     Human Resources Code, are amended to read as follows:

5-10           (d)  The department [division] shall provide staff necessary

5-11     for the committee.

5-12           (e)  The committee shall review rules and minimum standards

5-13     for child-care administrators, child-care facilities, and

5-14     child-placing agencies promulgated by state agencies, and shall

5-15     advise the department, [the division,] the council, and state

5-16     agencies on problems of child-care administrators, child-care

5-17     facilities, and child-placing agencies.

5-18           (f)  The committee shall receive and review the annual report

5-19     of the department [division].

5-20           SECTION 6.  Subsections (a) and (b), Section 42.023, Human

5-21     Resources Code, are amended to read as follows:

5-22           (a)  The executive director shall prepare an annual written

5-23     report regarding the department's [division's] activities under

5-24     this chapter.

5-25           (b)  The annual report shall include:

5-26                 (1)  a report by regions of applications for licensure

5-27     or certification, of provisional licenses issued, denied, or

 6-1     revoked, of licenses issued, denied, suspended or revoked, of

 6-2     emergency closures and injunctions, and of the compliance of

 6-3     state-operated agencies with certification requirements;

 6-4                 (2)  a summary of the amount and kind of in-service

 6-5     training and other professional development opportunities provided

 6-6     for department [division] staff;

 6-7                 (3)  a summary of training and other professional

 6-8     development opportunities offered to facilities' staffs; and

 6-9                 (4)  a report of new administrative procedures, of the

6-10     number of staff and staff changes, and of plans for the coming

6-11     year.

6-12           SECTION 7.  Chapter 42, Human Resources Code, is amended by

6-13     amending Subchapters C and D to read as follows:

6-14        SUBCHAPTER C.  REGULATION OF CERTAIN [CHILD-CARE] FACILITIES,

6-15                             HOMES, AND AGENCIES

6-16           Sec. 42.041.  REQUIRED LICENSE.  (a)  No person may operate a

6-17     child-care facility or child-placing agency without a license

6-18     issued by the department [division].

6-19           (b)  This section does not apply to:

6-20                 (1)  a state-operated facility;

6-21                 (2)  an agency foster home or agency foster group home;

6-22                 (3)  a facility that is operated in connection with a

6-23     shopping center, business, religious organization, or establishment

6-24     where children are cared for during short periods while parents or

6-25     persons responsible for the children are attending religious

6-26     services, shopping, or engaging in other activities on or near the

6-27     premises, including but not limited to retreats or classes for

 7-1     religious instruction;

 7-2                 (4)  a school or class for religious instruction that

 7-3     does not last longer than two weeks and is conducted by a religious

 7-4     organization during the summer months;

 7-5                 (5)  a youth camp licensed by the Texas Department of

 7-6     Health;

 7-7                 (6)  a facility [hospital] licensed, operated,

 7-8     certified, or registered by another state agency [the Texas

 7-9     Department of Mental Health and Mental Retardation or the Texas

7-10     Department of Health];

7-11                 (7)  an educational facility accredited by the Texas

7-12     [Central] Education Agency or the Southern Association of Colleges

7-13     and Schools that operates primarily for educational purposes in

7-14     grades kindergarten and above;

7-15                 (8)  an educational facility that operates solely for

7-16     educational purposes in grades kindergarten through at least grade

7-17     two, that does not provide custodial care for more than one hour

7-18     during the hours before or after the customary school day, and that

7-19     is a member of an organization that promulgates, publishes, and

7-20     requires compliance with health, safety, fire, and sanitation

7-21     standards equal to standards required by state, municipal, and

7-22     county codes;

7-23                 (9)  a kindergarten or preschool educational program

7-24     that is operated as part of a public school or a private school

7-25     accredited by the Texas [Central] Education Agency, that offers

7-26     educational programs through grade six, and that does not provide

7-27     custodial care during the hours before or after the customary

 8-1     school day;

 8-2                 (10)  a family home, whether registered as required by

 8-3     Section 42.052 or not;

 8-4                 (11)  an educational facility that is integral to and

 8-5     inseparable from its sponsoring religious organization or an

 8-6     educational facility both of which do not provide custodial care

 8-7     for more than two hours maximum per day, and that offers

 8-8     educational programs for children age five and above in one or more

 8-9     of the following:  kindergarten through at least grade three,

8-10     elementary, or secondary grades;

8-11                 (12)  [an agency group home;]

8-12                 [(13)]  an emergency shelter facility providing shelter

8-13     to minor mothers who are the sole support of their natural children

8-14     under Section 32.201 [35.05], Family Code, unless the facility

8-15     would otherwise require a license as a child-care facility under

8-16     this section; [or]

8-17                 (13) [(14)]  a juvenile detention facility certified

8-18     under Section 51.12, Family Code, or Section 141.042(d), [or] a

8-19     juvenile facility providing services solely for the Texas Youth

8-20     Commission, or any other correctional facility for children

8-21     operated or regulated by another state agency or by a political

8-22     subdivision of the state;[.]

8-23                 (14)  an elementary-age (ages 5-13) recreation program

8-24     operated by a municipality provided the governing body of the

8-25     municipality annually adopts standards of care by ordinance after a

8-26     public hearing for such programs, that such standards are provided

8-27     to the parents of each program participant, and that the ordinances

 9-1     shall include, at a minimum, staffing ratios, minimum staff

 9-2     qualifications, minimum facility, health, and safety standards, and

 9-3     mechanisms for monitoring and enforcing the adopted local

 9-4     standards; and further provided that parents be informed that the

 9-5     program is not licensed by the state and the program may not be

 9-6     advertised as a child-care facility; or

 9-7                 (15)  an annual youth camp held in a municipality with

 9-8     a population of more than 1.5 million that operates for not more

 9-9     than three months and that has been operated for at least 10 years

9-10     by a nonprofit organization that provides care for the homeless.

9-11           (c)  A single license that lists addresses and the

9-12     appropriate facilities may be issued to a child-care institution

9-13     that operates noncontiguous facilities that are nearby and that are

9-14     demonstrably a single operation as indicated by patterns of

9-15     staffing, finance, administrative supervision, and programs.

9-16           (d)  [A person operating or desiring to operate a child-care

9-17     facility that is exempt from the provisions of Subsection (a) of

9-18     this section may apply to the division for a license as provided in

9-19     Section 42.046 of this code.  The division may not deny an exempt

9-20     facility a license on the ground that it is exempt from Subsection

9-21     (a) of this section.]  A facility exempt from the provisions of

9-22     Subsection (a) of this section that desires to receive or

9-23     participate in federal or state funding shall be required to comply

9-24     with all other provisions of this chapter [Act] and with all

9-25     regulations promulgated under this chapter [thereunder].

9-26           (e)  The exemptions provided by Subsection (b) of this

9-27     section do not affect the authority of local, regional, or state

 10-1    health department officials, the state fire marshal, or local fire

 10-2    prevention officials to inspect child-care facilities.

 10-3          Sec. 42.042.  RULES AND STANDARDS.  (a)  The department shall

 10-4    make rules to carry out the provisions of this chapter.

 10-5          (b)  The department shall conduct a comprehensive review of

 10-6    all rules and standards at least every six years.  For purposes of

 10-7    this subsection, the six-year period begins on the latest of the

 10-8    date of:

 10-9                (1)  the conclusion of the review of the rules and

10-10    standards;

10-11                (2)  a decision by the department not to revise the

10-12    rules and standards;

10-13                (3)  a decision by the board not to revise the rules

10-14    and standards; or

10-15                (4)  board action adopting new standards.

10-16          (c)  The department shall provide a standard procedure for

10-17    receiving and recording complaints [and a standard form for

10-18    recording complaints].

10-19          (d)  The department shall provide standard forms for

10-20    applications and inspection reports.

10-21          (e)  The department shall promulgate minimum standards that

10-22    apply to licensed child-care facilities and to registered family

10-23    homes covered by this chapter and that will:

10-24                (1)  promote the health, safety, and welfare of

10-25    children attending a facility or registered family home;

10-26                (2)  promote safe, comfortable, and healthy physical

10-27    facilities and registered family homes for children;

 11-1                (3)  ensure adequate supervision of children by

 11-2    capable, qualified, and healthy personnel;

 11-3                (4)  ensure adequate and healthy food service where

 11-4    food service is offered;

 11-5                (5)  prohibit racial discrimination by child-care

 11-6    facilities and registered family homes; [and]

 11-7                (6)  require procedures for parental and guardian

 11-8    consultation in the formulation of children's educational and

 11-9    therapeutic programs; and

11-10                (7)  prevent the breakdown of foster care and adoptive

11-11    placement.

11-12          (f)  In promulgating minimum standards for the provision of

11-13    child-care services [facilities], the department shall recognize

11-14    the various categories of services [facilities], including services

11-15    for [facilities offering] specialized care, [and] the various

11-16    categories of children and their particular needs, and the

11-17    differences in the organization and operation of child-care

11-18    facilities and institutions.  Standards for child-care institutions

11-19    must require an intake study before a child is placed in an

11-20    institution.  The intake study may be conducted at a community

11-21    mental health and mental retardation center.

11-22          (g)  In promulgating minimum standards the department may

11-23    recognize and treat differently the types of services provided by

11-24    the following:

11-25                (1)  family homes;

11-26                (2)  child-care facilities, including child-care[:

11-27    child-caring] institutions, foster group homes, foster homes, group

 12-1    day-care homes, and day-care centers;

 12-2                (3)  child-placing agencies;

 12-3                (4)  [, group day-care homes, family day homes,

 12-4    registered family homes, and] agency foster homes; and

 12-5                (5)  agency foster group homes.

 12-6          (h)  The department shall promulgate minimum standards for

 12-7    child-placing agencies.

 12-8          (i)  Before adopting minimum standards, the department

 12-9    [division] shall present the proposed standards to the State

12-10    Advisory Committee on Child-Care Facilities for review and comment,

12-11    and shall send a copy of the proposed standards to each licensee

12-12    covered by the proposed standards at least 60 days before the

12-13    standards take effect to provide the licensee an opportunity to

12-14    review and to send written suggestions to the committee [council]

12-15    and the department.

12-16          (j)  The department may waive compliance with a minimum

12-17    standard in a specific instance if it determines that the economic

12-18    impact of compliance is sufficiently great to make compliance

12-19    impractical.

12-20          (k)  The department may not regulate or attempt to regulate

12-21    or control the content or method of any instruction or curriculum

12-22    of a school sponsored by a religious organization.

12-23          (l)  In promulgating [The department shall adopt] minimum

12-24    standards for the regulation of [regulating] family homes that

12-25    register with the department, the department [division.  The rules]

12-26    must address the minimum qualifications, education, and training

12-27    required of a person who operates a family home registered with the

 13-1    department [division].

 13-2          (m)  [The department shall ensure that each child-care

 13-3    facility that provides care for less than 24 hours a day complies

 13-4    with the appropriate minimum standards relating to staff-child

 13-5    ratios, group sizes, and square footage as those minimum standards

 13-6    existed on September 1, 1985.  The department may not enforce new

 13-7    standards in relation to staff-child ratios, group sizes, or square

 13-8    footage that are more stringent than the 1985 standards for those

 13-9    facilities.  This subsection expires September 1, 1997.]

13-10          [(n)]  In determining minimum standards for nonresidential

13-11    child-care facilities that provide care for less than 24 hours a

13-12    day, the department shall, within available appropriations, conduct

13-13    a comprehensive cost-benefit analysis and economic impact study

13-14    that includes families and licensed child-care providers.

13-15          (n) [(o)]  Not later than the 60th day before the date the

13-16    board adopts a revision to the minimum standards for child-care

13-17    facilities, the department shall present the revision to the

13-18    appropriate legislative oversight committees that have jurisdiction

13-19    over child-care facilities for review and comment.

13-20          Sec. 42.043.  RULES FOR IMMUNIZATIONS.  (a)  The department

13-21    shall make rules for the immunization of children in [admitted to]

13-22    facilities regulated under this chapter.

13-23          (b)  The department shall require that each child at an

13-24    appropriate age have a test for tuberculosis and be immunized

13-25    against diphtheria, tetanus, poliomyelitis, mumps, rubella, and

13-26    rubeola and against any other communicable disease as recommended

13-27    by the Texas Department of Health.  The immunization must be

 14-1    effective on the date of first entry into the facility.  However, a

 14-2    child may be provisionally admitted if the required immunizations

 14-3    have begun and are completed as rapidly as medically feasible.

 14-4          (c)  The Texas Department of Health shall make rules for the

 14-5    provisional admission of children to facilities regulated under

 14-6    this chapter and may modify or delete any of the immunizations

 14-7    listed in Subsection (b) of this section or require additional

 14-8    immunizations as a requirement for admission to a facility.

 14-9          (d)  No immunization may be required for admission to a

14-10    facility regulated under this chapter if a person applying for a

14-11    child's admission submits one of the following affidavits:

14-12                (1)  an affidavit signed by a licensed physician

14-13    stating that the immunization would be injurious to the health and

14-14    well-being of the child or a member of the child's family or

14-15    household; or

14-16                (2)  an affidavit signed by the child's parent or

14-17    guardian stating that the immunization conflicts with the tenets

14-18    and practices of a recognized religious organization of which the

14-19    applicant is an adherent or a member.

14-20          (e)  Each regulated facility shall keep an individual

14-21    immunization record for each child admitted, and the records shall

14-22    be open for inspection by the department [division] at all

14-23    reasonable times.

14-24          (f)  The Texas Department of Health shall provide the

14-25    immunizations required by this section to children in areas where

14-26    there is no local provision of these services.

14-27          Sec. 42.044.  INSPECTIONS.  (a)  An authorized representative

 15-1    of the department [division] may visit a facility regulated under

 15-2    this chapter or a registered family home during operating hours to

 15-3    investigate, inspect, and evaluate.

 15-4          (b)  The department [division] shall inspect all licensed or

 15-5    certified facilities at least once a year and may inspect other

 15-6    facilities or registered family homes as necessary.  At least one

 15-7    of the annual visits must be unannounced and all may be

 15-8    unannounced.

 15-9          (c)  The department [division] must investigate a facility

15-10    regulated under this chapter or a registered family home  when a

15-11    complaint is received.  The [division] representative of the

15-12    department must notify the operator of a registered family home or

15-13    the [facility's] director or authorized representative of a

15-14    regulated facility when a complaint is being investigated and

15-15    report in writing the results of the investigation to the family

15-16    home's operator or to the regulated facility's director or the

15-17    director's authorized representative.

15-18          (d)  The department [division] may call on political

15-19    subdivisions and governmental agencies for assistance within their

15-20    authorized fields.

15-21          Sec. 42.045.  RECORDS.  (a)  A person who operates a licensed

15-22    or certified facility shall maintain individual child development

15-23    records, individual health records, statistical records, and

15-24    complete financial records.

15-25          (b)  A person who provides adoption services under a  license

15-26    to operate [operates] a child-placing agency shall furnish

15-27    information required by the department to determine whether

 16-1    adoption related income and disbursements are reasonable,

 16-2    appropriate, and in compliance with the department's minimum

 16-3    standards [have an annual audit by a certified public accountant of

 16-4    the facility's books.  The audit  must include a statement of

 16-5    income and disbursements].

 16-6          (c)  If a child-placing agency terminates operation as a

 16-7    child-placing agency, it shall, after giving notice to the

 16-8    department, transfer its files and records concerning adopted

 16-9    children, their biological families, and their adoptive families to

16-10    the department or to a facility licensed by the department to place

16-11    children for adoption.

16-12          Sec. 42.046.  [LICENSE] APPLICATION FOR LICENSE OR

16-13    REGISTRATION.  (a)  An applicant for a license to operate a

16-14    child-care facility or child-placing agency or for a registration

16-15    to operate a family home shall submit to the department [division]

16-16    the appropriate fee prescribed by Section 42.054 of this code and a

16-17    completed application on a form provided by the department

16-18    [division].

16-19          (b)  The department [division] shall supply the applicant the

16-20    application form and a copy of the appropriate minimum standards.

16-21          (c)  After receiving an application, the department

16-22    [division] shall investigate the applicant and the plan of care for

16-23    children.

16-24          (d)  The department [division] shall complete the

16-25    investigation and decide on an application within two months after

16-26    the date the department [division] receives a completed [an]

16-27    application.

 17-1          Sec. 42.047.  CONSULTATIONS.  (a)  The department shall offer

 17-2    consultation to potential applicants, applicants, and license,

 17-3    registration, and certification holders about meeting and

 17-4    maintaining standards for licensing, registration, and

 17-5    certification and achieving programs of excellence in child care.

 17-6          (b)  The department shall offer consultation to prospective

 17-7    and actual users of facilities or homes.

 17-8          [Sec. 42.048.  ADVISORY OPINIONS.  (a)  The director of the

 17-9    division may give an advisory opinion on whether or not a planned

17-10    facility or a planned change in an existing facility complies with

17-11    the division's rules and minimum standards.]

17-12          [(b)  A written opinion authorized by Subsection (a) of this

17-13    section is binding on the division as a declaratory order if it is

17-14    signed by the division director and the division representative

17-15    administering this chapter in a division region, and if an

17-16    applicant or license holder has acted in reliance on the opinion.]

17-17          Sec. 42.048 [42.049].  LICENSING.  (a)  The department

17-18    [division] shall issue a license after determining that an

17-19    applicant has satisfied all requirements.

17-20          (b)  When issuing a license, the department [division] may

17-21    impose restrictions on a facility, including but not limited to the

17-22    number of children to be served and the type of children to be

17-23    served.

17-24          (c)  The department [division] may grant a variance of an

17-25    individual standard set forth in the applicable standards for good

17-26    and just cause.

17-27          (d)  A license holder must display a license issued under

 18-1    this chapter in a prominent place at the facility.

 18-2          (e)  A license issued under this chapter is not transferable

 18-3    and applies only to the operator and facility location stated in

 18-4    the license application.  A change in location or ownership

 18-5    automatically revokes a license.

 18-6          (f)  A license must be issued if the department [division]

 18-7    determines that a facility meets all requirements.  The evaluation

 18-8    shall be based on one or more visits to the facility and a review

 18-9    of required forms and records.  A license is valid until revoked or

18-10    surrendered.

18-11          Sec. 42.049 [42.0491].  LIABILITY INSURANCE REQUIRED.  (a)  A

18-12    license holder shall maintain liability insurance coverage in the

18-13    amount of $300,000 for each occurrence of negligence.  An insurance

18-14    policy or contract required under this section must cover injury to

18-15    a child that occurs while the child is on the premises of the

18-16    license holder or in the care of the license holder.

18-17          (b)  A license holder shall file with the department

18-18    [division] a certificate or other evidence from an insurance

18-19    company showing that the license holder has an unexpired and

18-20    uncancelled insurance policy or contract that meets the

18-21    requirements of this section.

18-22          (c)  Should the license holder for financial reasons or for

18-23    lack of availability of an underwriter willing to issue a policy be

18-24    unable to secure the insurance required under Subsection (a) or

18-25    should the policy limits be exhausted, the license holder shall

18-26    notify the parent or a person standing in parental relationship to

18-27    each child for whom the license holder provides care a written

 19-1    notice that the liability coverage is not provided and there will

 19-2    not be a ground for suspension or revocation of the license

 19-3    holder's license under this chapter.  The license holder shall also

 19-4    notify the department that the coverage is not provided and provide

 19-5    the reason for same.  In no case shall the inability to secure

 19-6    coverage serve to indemnify the license holder for damages due to

 19-7    negligence.

 19-8          (d)  The insurance policy or contract shall be maintained at

 19-9    all times in an amount as required by this section.  Failure by a

19-10    license holder to renew the policy or contract or to maintain the

19-11    policy or contract in the required amount is a ground for

19-12    suspension or revocation of the license holder's license under this

19-13    chapter.

19-14          (e)  This section does not apply to a group [or registered]

19-15    day-care [day care] home or registered family home.

19-16          Sec. 42.050.  LICENSE RENEWAL.  (a)  A license holder may

19-17    apply for a new license in compliance with the requirements of this

19-18    chapter and the rules promulgated by the department [division].

19-19          (b)  The application for a new license must be completed and

19-20    decided on by the department [division] before the expiration of

19-21    the license under which a facility is operating.

19-22          (c)  The department [division] shall evaluate the application

19-23    for a new license to determine if all licensing requirements are

19-24    met.  The evaluation may include a specified number of visits to

19-25    the facility and must include a review of all required forms and

19-26    records.

19-27          Sec. 42.051.  PROVISIONAL LICENSE.  (a)  The department

 20-1    [division] shall issue a provisional license when a facility's

 20-2    plans meet the department's licensing requirements and one of the

 20-3    following situations exists:

 20-4                (1)  the facility is not currently operating;

 20-5                (2)  the facility has relocated and has made changes in

 20-6    the type of child-care service it provides; or

 20-7                (3)  there is a change in ownership of the facility

 20-8    resulting in changes in policy and procedure or in the staff who

 20-9    have direct contact with the children.

20-10          (b)  A provisional license is valid for six months from the

20-11    date it is issued and may be renewed for an additional six months

20-12    [is not renewable].

20-13          Sec. 42.052.  CERTIFICATION AND REGISTRATION.  (a)  A

20-14    state-operated child-care facility or child-placing  agency must

20-15    receive certification of approval from the department [division].

20-16    The certification of approval remains valid until revoked or

20-17    surrendered.

20-18          (b)  To be certified, a facility must comply with the

20-19    department's rules and standards and any provisions of this chapter

20-20    that apply to a licensed facility of the same category.  The

20-21    operator of a certified facility must display the certification in

20-22    a prominent place at the facility.

20-23          (c)  A family home that provides care for three or fewer

20-24    children, excluding [the caretaker's own] children who are related

20-25    to the caretaker, may register with the department [division].  A

20-26    family home that provides care for four or more children, excluding

20-27    [the caretaker's own] children who are related to the caretaker,

 21-1    shall [must] register with the department [division].  A

 21-2    registration remains valid until revoked or surrendered.  The

 21-3    operator of a registered home must display the registration in a

 21-4    prominent place at the home.

 21-5          (d)  To remain registered with the department [division], a

 21-6    family home must comply with the department's rules and standards

 21-7    and any provision of this chapter that applies to a registered

 21-8    family home.

 21-9          (e)  The certification requirements of this section do not

21-10    apply to a Texas Youth Commission [Council] facility, a Texas

21-11    Juvenile Probation Commission facility,  or a facility providing

21-12    services solely for the Texas Youth Commission [Council].

21-13          (f)  A family home may not place a public advertisement that

21-14    uses the title "registered family home" or any variation of the

21-15    phrase unless the home is registered [with the division] under this

21-16    chapter.  Any public advertisement for a registered family home

21-17    which uses the title "registered family home" must contain a

21-18    provision in bold type stating:  "THIS HOME IS REGISTERED WITH THE

21-19    DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT

21-20    LICENSED OR REGULARLY INSPECTED."

21-21          (g)  The certification requirements of this section do not

21-22    apply to a juvenile detention facility certified under Section

21-23    51.12, Family Code, or Section 141.042(d).

21-24          Sec. 42.0521.  DEPOSIT OF FEES.  The fees authorized by this

21-25    chapter and received by the department shall be deposited in the

21-26    general revenue fund.

21-27          Sec. 42.053.  AGENCY FOSTER HOMES AND AGENCY FOSTER GROUP

 22-1    HOMES.  (a)  An agency foster home or agency foster group home is

 22-2    considered part of the child-placing agency that operates the

 22-3    agency foster home or agency foster group home for purposes of

 22-4    licensing.

 22-5          (b)  The operator of a licensed agency shall display a copy

 22-6    of the license in a prominent place in the agency foster home or

 22-7    agency foster group home used by the agency.

 22-8          (c)  An agency foster home or agency foster group home shall

 22-9    comply with all provisions of this chapter and all department rules

22-10    and standards that apply to a child-care facility caring for a

22-11    similar number of children for a similar number of hours each day.

22-12          (d)  The department [division] shall revoke or suspend the

22-13    license of a child-placing agency if an agency foster home or

22-14    agency foster group home operated by the licensed agency fails to

22-15    comply with Subsection (c) of this section.

22-16          [Sec. 42.054.  FEES.  (a)  The division shall charge a

22-17    nonrefundable application fee of $25 to an applicant for an initial

22-18    license to operate a child-care facility or child-placing agency.]

22-19          [(b)  The division shall charge each child-care facility a

22-20    fee of $25 for a provisional license.  The division shall charge

22-21    each child-placing agency a fee of $50 for a provisional license.]

22-22          [(c)  The division shall charge each child-care facility an

22-23    annual license fee in the amount of $40 for each child-care

22-24    facility plus $1 for each child the child-care facility is

22-25    permitted to serve, except that the total fee may not exceed $150.

22-26    The fee is due on the date on which the division issues the

22-27    child-care facility's license and on the anniversary of that date.]

 23-1          [(d)  The division shall charge each child-placing agency an

 23-2    annual license fee of $100.  The fee is due on the date on which

 23-3    the division issues the child-placing agency's license and on the

 23-4    anniversary of that date.]

 23-5          [(e)  The division shall charge each registered family home

 23-6    an annual registration fee of $15.  The fee is due on the date on

 23-7    which the division registers the home and on the anniversary of

 23-8    that date.]

 23-9          [(f)  If a facility, agency, or home fails to pay the annual

23-10    license or registration fee when due, the license or registration

23-11    is suspended until the fee is paid.]

23-12          [(g)  The provisions of Subsections (b) through (f) do not

23-13    apply to:]

23-14                [(1)  licensed foster family homes and licensed foster

23-15    family group homes;]

23-16                [(2)  nonprofit facilities regulated under this chapter

23-17    that provided 24-hour care for children in the managing

23-18    conservatorship of the department during the 12-month period

23-19    immediately prior to the anniversary date of the facility's

23-20    license.]

23-21          Sec. 42.054.  FEES.  (a)  The department [division] shall

23-22    charge an applicant a nonrefundable application fee of $35 [to an

23-23    applicant] for an initial license to operate a child-care facility

23-24    or a child-placing agency.

23-25          (b)  The department [division] shall charge each child-care

23-26    facility a fee of $35 for a provisional license.  The department

23-27    [division] shall charge each child-placing agency a fee of $50 for

 24-1    a provisional license.

 24-2          (c)  The department [division] shall charge each licensed

 24-3    child-care facility an annual license fee in the amount of $35 [for

 24-4    each child-care facility] plus $1 for each child the child-care

 24-5    facility is permitted to serve.  The fee is due on the date on

 24-6    which the department [division] issues the child-care facility's

 24-7    initial license and on the anniversary of that date.

 24-8          (d)  The department [division] shall charge each licensed

 24-9    child-placing agency an annual license fee of $100.  The fee is due

24-10    on the date on which the department [division] issues the

24-11    child-placing agency's initial license and on the anniversary of

24-12    that date.

24-13          (e)  The department [division] shall charge each family home

24-14    that is registered with the department [division] an annual

24-15    registration fee of $35 to cover the department's cost in

24-16    regulating family homes.  The fee is due on the date on which the

24-17    department initially [division] registers the home and on the

24-18    anniversary of that date.

24-19          (f)  If a facility, agency, or home fails to pay the annual

24-20    [license or registration] fee when due, the license or

24-21    registration, as appropriate, is suspended until the fee is paid.

24-22          (g)  The provisions of Subsections (b) through (f) of this

24-23    section do not apply to:

24-24                (1)  licensed foster [family] homes and licensed foster

24-25    [family] group homes;

24-26                (2)  nonprofit facilities regulated under this chapter

24-27    that provided 24-hour care for children in the managing

 25-1    conservatorship of the department during the 12-month period

 25-2    immediately preceding the anniversary date of the facility's

 25-3    license; or

 25-4                (3)  facilities operated by a nonprofit corporation or

 25-5    foundation that provides 24-hour residential care and does not

 25-6    charge for the care provided.

 25-7          Sec. 42.055.  [USE OF FEES.  The child-care training fund is

 25-8    established as a special fund in the state treasury, and the

 25-9    division shall deposit fees received under this subchapter to the

25-10    credit of that fund.  The child-care training fund may be used only

25-11    to provide programs of parent education and caretaker training

25-12    designed to ensure the health, safety, and well-being of children.

25-13    Up to three percent of the amount collected as fees under the

25-14    authority of this chapter may be used by the department for actual

25-15    costs of collecting the fees and administering the fund.]

25-16          [Sec. 42.056.]  SIGN POSTING.  (a)  Each child-care [child

25-17    care] facility shall post in a location that is conspicuous to all

25-18    employees and customers a sign that includes:

25-19                (1)  a description of the provisions of the [Chapter

25-20    34,] Family Code[,] relating to the duty to report child abuse or

25-21    neglect; and

25-22                (2)  a description of the penalties for violating the

25-23    reporting provisions of the [Chapter 34,] Family Code.

25-24          (b)  The department by rule shall determine the design, size,

25-25    and wording of the sign.

25-26          (c)  The department shall provide the sign to each child-care

25-27    [child care] facility without charge.

 26-1          (d)  A person who operates a child-care [child care] facility

 26-2    commits an offense if the department provides a sign to the

 26-3    facility as provided by this section and the person intentionally

 26-4    fails to display the sign in the facility as prescribed by this

 26-5    section.  An offense under this subsection is a Class C

 26-6    misdemeanor.

 26-7          Sec. 42.056.  REQUIRED BACKGROUND AND CRIMINAL HISTORY

 26-8    CHECKS.  (a)  In accordance with rules adopted by the department,

 26-9    the director, owner, or operator of a child-care facility or family

26-10    home shall, when applying to operate a child-care facility or when

26-11    registering a family home and at least once during each 24 months

26-12    after receiving a license, registration, or certification of

26-13    approval, submit to the department for use in conducting background

26-14    and criminal history checks:

26-15                (1)  the name of the director, owner, and operator of

26-16    the facility or home, and the name of each person employed at the

26-17    facility or home; and

26-18                (2)  the name of each person 14 years of age or older

26-19    who will regularly or frequently be staying or working at the

26-20    facility or home while children are being provided care.

26-21          (b)  The department shall conduct background and criminal

26-22    history checks using:

26-23                (1)  the information provided under Subsection (a);

26-24                (2)  the information made available by the Department

26-25    of Public Safety under Section 411.114, Government Code, or by the

26-26    Federal Bureau of Investigation or other criminal justice agency

26-27    under Section 411.087, Government Code; and

 27-1                (3)  the department's records of reported abuse and

 27-2    neglect.

 27-3          (c)  The department by rule shall require a child-care

 27-4    facility or family home to pay to the department a fee in an amount

 27-5    not to exceed the administrative costs the department incurs in

 27-6    conducting a background and criminal history check under this

 27-7    section.

 27-8                          SUBCHAPTER D.  REMEDIES

 27-9          Sec. 42.071.  [LICENSE] SUSPENSION, EVALUATION, OR PROBATION

27-10    OF LICENSE OR REGISTRATION.  (a)  The department [division] may

27-11    suspend the license of a facility or the registration of a family

27-12    home that has temporarily ceased operation but has definite plans

27-13    for starting operations again within the time limits of the issued

27-14    license or registration.

27-15          (b)  The department [division] may suspend a facility's

27-16    license or a family home's registration for a definite period

27-17    rather than deny or revoke the license or registration if the

27-18    department [division] finds repeated noncompliance with standards

27-19    that do not endanger the health and safety of children.  To qualify

27-20    for license or registration suspension under this subsection, a

27-21    facility or family home must suspend its operations and show that

27-22    standards can be met within the suspension period.

27-23          (c)  If the department [division] finds a facility or family

27-24    home is in repeated noncompliance with standards that do not

27-25    endanger the health and safety of children, the department

27-26    [division] may schedule the facility or family home for evaluation

27-27    or probation rather than suspend or revoke the facility's license

 28-1    or the family home's registration.  The department [division] shall

 28-2    provide notice to the facility or family home of the evaluation or

 28-3    probation and of the items of noncompliance not later than the 10th

 28-4    day before the evaluation or probation period begins.  The

 28-5    department [division] shall designate a period of not less than 30

 28-6    days during which the facility or family home will remain under

 28-7    evaluation.  During the evaluation or probation period, the

 28-8    facility or family home must correct the items that were in

 28-9    noncompliance and report the corrections to the department

28-10    [division] for approval.

28-11          (d)  The department [division] shall revoke the license of a

28-12    facility or the registration of a family home that does not comply

28-13    with standards at the end of a license or registration suspension.

28-14          (e)  The department [division] may suspend or revoke the

28-15    license of a facility or the registration of a family home that

28-16    does not correct items that were in noncompliance or that does not

28-17    comply with required standards within the applicable evaluation or

28-18    probation period.

28-19          Sec. 42.072.  LICENSE OR REGISTRATION DENIAL, SUSPENSION, OR

28-20    REVOCATION.  (a)  The department [division] may suspend, deny, [or]

28-21    revoke, or refuse to renew the license, registration, or

28-22    certification of approval of a facility or family home that does

28-23    not comply with the requirements of this chapter, the standards and

28-24    rules of the department, or the specific terms of the license,

28-25    registration, or certification.  The department may revoke the

28-26    probation of a person whose license or registration is suspended if

28-27    the person violates a term of the conditions of probation.

 29-1          (b)  If the department proposes to take an action under

 29-2    Subsection (a), the person is entitled to a hearing conducted by

 29-3    the State Office of Administrative Hearings.  Proceedings for a

 29-4    disciplinary action are governed by the administrative procedure

 29-5    law, Chapter 2001, Government Code.  Rules of practice adopted by

 29-6    the board under Section 2001.004, Government Code, applicable to

 29-7    the proceedings for a disciplinary action may not conflict with

 29-8    rules adopted by the State Office of Administrative Hearings.

 29-9          (c)  [The division shall notify the person operating or

29-10    proposing to operate a facility of the reasons for the denial or

29-11    revocation and of the person's right to appeal the decision within

29-12    30 days after receiving the notice.]

29-13          [(c)  A person who wishes to appeal a license denial or

29-14    revocation shall notify the director by certified mail within 30

29-15    days after receiving the notice required in Subsection (b) of this

29-16    section.  The person shall send a copy of the notice of appeal to

29-17    the assigned division representative.]

29-18          [(d)  The denial or revocation of a license or certification

29-19    and the appeal from that action are governed by the procedure for a

29-20    contested case hearing under Chapter 2001, Government Code.]

29-21          [(e)  A person whose license has been denied or revoked may

29-22    challenge the decision by filing a suit in a district court of

29-23    Travis County or the county in which the person's facility is

29-24    located within 30 days after receiving the decision.  The trial

29-25    shall be de novo.]

29-26          [(f)  Records of the hearing shall be kept for two years

29-27    after a decision is rendered.  On request, and at the person's own

 30-1    expense, the division shall supply a copy of the verbatim

 30-2    transcript of the hearing to a person appealing a license denial or

 30-3    revocation in district court.]

 30-4          [(g)  A person may continue to operate a facility during an

 30-5    appeal of a license denial or revocation unless the division has

 30-6    obtained injunctive relief under Section 42.074 or civil penalties

 30-7    under Section 42.075 or the facility has been closed under Section

 30-8    42.073.]

 30-9          [(h)]  A person whose license, registration, or certification

30-10    is revoked may not apply for any license, registration, or

30-11    certification under this chapter before the second anniversary of

30-12    the date on which the revocation takes effect by department or

30-13    court order.

30-14          (d)  The department by rule may provide for denial of an

30-15    application or renewal for a licensed facility or for registering a

30-16    family home or may revoke a facility's license or a family home's

30-17    registration based on the results of a background or criminal

30-18    history check.

30-19          Sec. 42.073.  EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY

30-20    OR FAMILY HOME.  (a)  The department [division] shall suspend a

30-21    facility's license or a family home's registration and[,] order the

30-22    immediate closing of the facility or family home[, and place the

30-23    children attending or residing in the facility elsewhere] if:

30-24                (1)  the department [division] finds the facility or

30-25    family home is operating in violation of the applicable standards

30-26    prescribed by this chapter; and

30-27                (2)  the violation creates an immediate threat to the

 31-1    health and safety of the children attending or residing in the

 31-2    facility or family home.

 31-3          (b)  An order suspending a license or registration and an

 31-4    order closing a facility or family home under this section is

 31-5    immediately effective on the date on which the [license] holder of

 31-6    the license or registration receives written notice or on a later

 31-7    date specified in the order.

 31-8          (c)  An order is valid for 10 days after the effective date

 31-9    of the order.

31-10          (d)  The suspension of a license or registration and the

31-11    closure of a [the] facility or family home and the appeal from that

31-12    action are governed by the procedures for a contested case hearing

31-13    under Chapter 2001, Government Code.

31-14          Sec. 42.074.  INJUNCTIVE RELIEF.  (a)  When it appears that a

31-15    person has violated, is violating, or is threatening to violate the

31-16    licensing, certification, or registration requirements of this

31-17    chapter or the department's licensing, certification, or

31-18    registration rules and standards, the department [division] may

31-19    file a suit in a district court in Travis County or in the county

31-20    where the facility or family home is located for assessment and

31-21    recovery of civil penalties under Section 42.075 [of this code],

31-22    for injunctive relief, including a temporary restraining order, or

31-23    for both injunctive relief and civil penalties.

31-24          (b)  The district court shall grant the injunctive relief the

31-25    facts may warrant.

31-26          (c)  At the department's [division's] request, the attorney

31-27    general or the county or district attorney of the county in which

 32-1    the facility or family home is located shall conduct a suit in the

 32-2    name of the State of Texas for injunctive relief, to recover the

 32-3    civil penalty, or for both injunctive relief and civil penalties as

 32-4    authorized by Subsection (a) [of this section].

 32-5          (d)  Injunctive relief provided by this section is in

 32-6    addition to any other action, proceeding, or remedy authorized by

 32-7    law.  It is not necessary to allege or prove in an action filed

 32-8    under this section that an adequate remedy at law does not exist or

 32-9    that substantial or irreparable harm would result from the

32-10    continued violation.

32-11          (e)  The department is not required to give an appeal bond in

32-12    an action arising under this section.

32-13          Sec. 42.075.  CIVIL PENALTY.  (a)  A person is subject to a

32-14    civil penalty of not less than $50 nor more than $100 for each day

32-15    of violation and for each act of violation if the person:

32-16                (1)  threatens serious harm to a child in a facility or

32-17    family home by violating a provision of this chapter or a

32-18    department rule or standard;

32-19                (2)  violates a provision of this chapter or a

32-20    department rule or standard three or more times within a 12-month

32-21    period; or

32-22                (3)  places a public advertisement for an unlicensed

32-23    facility or unregistered family home.

32-24          (b)  The civil penalty authorized by this section is

32-25    cumulative and in addition to the criminal penalties and injunctive

32-26    relief provided by this chapter.

32-27          Sec. 42.076.  CRIMINAL PENALTIES.  (a)  A person who operates

 33-1    a child-care facility or child-placing agency without a license

 33-2    commits a Class B misdemeanor.

 33-3          (b)  A person who operates a family home without a

 33-4    registration commits a Class B misdemeanor.

 33-5          (c)  A person who places a public advertisement for an

 33-6    unlicensed facility or an unregistered family home commits a Class

 33-7    C misdemeanor.

 33-8          [(c)  A person who places an advertisement for a registered

 33-9    family home in violation of Section 42.052(f) of this code commits

33-10    a Class C misdemeanor.]

33-11          (d)  It is not an offense under this section if a

33-12    professional provides legal or medical services to:

33-13                (1)  a parent who identifies the prospective adoptive

33-14    parent and places the child for adoption without the assistance of

33-15    the professional; or

33-16                (2)  a prospective adoptive parent who identifies a

33-17    parent and receives placement of a child for adoption without

33-18    assistance of the professional.

33-19          Sec. 42.077.  NOTICE OF ACTION AGAINST FACILITY OR FAMILY

33-20    HOME.  (a)  If the department revokes or suspends a facility's

33-21    license or a family home's registration, the department shall

33-22    publish notice of this action in a newspaper of general circulation

33-23    in the county in which the facility or family home is located.  The

33-24    newspaper shall place the notice in the section in which

33-25    advertisements for day-care services are normally published.

33-26          (b)  If a person who operates a facility or family home that

33-27    has had its license or registration revoked or suspended later

 34-1    applies for a new license or registration to operate the same

 34-2    facility or family home, the department shall charge the person an

 34-3    application fee in an amount necessary to reimburse the department

 34-4    for the cost of the notice relating to that facility or family

 34-5    home.

 34-6          (c)  The department shall pay for publication of the notice

 34-7    from funds appropriated to the department for licensing and

 34-8    regulating child-care facilities and for registering and regulating

 34-9    family homes and from appeal and application fees collected under

34-10    Subsection (b) [of this section] and appropriated to the

34-11    department.

34-12          (d)  A facility or family home that has its license or

34-13    registration revoked or suspended shall mail notification of this

34-14    action by certified mail to the parents or guardian of the child

34-15    served by the facility or family home.  The facility or family home

34-16    shall mail the notification within five days of the effective date

34-17    of the [license] revocation or suspension of the license or

34-18    registration.

34-19          SECTION 8.  Section 43.012, Human Resources Code, is amended

34-20    to read as follows:

34-21          Sec. 43.012.  PENALTY.  A person who serves as a child-care

34-22    administrator without the license required by this chapter commits

34-23    a Class C misdemeanor [and may be fined not less than $50 nor more

34-24    than $100].

34-25          SECTION 9.  (a)  This Act takes effect September 1, 1997.

34-26          (b)  The change in law made by this Act applies only to an

34-27    offense committed on or after the effective date of this Act.  For

 35-1    purposes of this subsection, an offense is committed before the

 35-2    effective date of this Act if any element of the offense occurs

 35-3    before that date.  An offense committed before the effective date

 35-4    of this Act is covered by the law in effect when the offense was

 35-5    committed, and the former law is continued in effect for that

 35-6    purpose.

 35-7          (c)  The change in law made by this Act applies only to a

 35-8    license or registration fee due to be paid on or after the

 35-9    effective date of this Act.  A license or registration fee due to

35-10    be paid before the effective date of this Act is governed by the

35-11    law in effect immediately before the effective date of this Act,

35-12    and that law is continued in effect for that purpose.

35-13          SECTION 10.  The importance of this legislation and the

35-14    crowded condition of the calendars in both houses create an

35-15    emergency and an imperative public necessity that the

35-16    constitutional rule requiring bills to be read on three several

35-17    days in each house be suspended, and this rule is hereby suspended.